Kagan: Supreme Court front-runner?

Solicitor General Elena Kagan has emerged as the “prohibitive favorite” to fill retiring liberal Justice John Paul Stevens’ Supreme Court slot, said David Von Drehle in Time.com. Naturally, the Democratic base wants President Obama to pick a “sharp-penned progressive to take over the Stevens soapbox.” But given Washington’s bitterly polarized state, Obama is more likely to seek a nominee who can avoid a bruising confirmation battle—his own version of Chief Justice John Roberts, someone “with a soothing demeanor and a paper trail as bland as Milk of Magnesia.” Such a moderate justice might be best positioned to convince Justice Anthony Kennedy, the court’s swing vote, to cast his lot with the liberals. And of the names floated so far, “no one fits that bill better” than the 49-year-old Kagan, the first female dean of Harvard Law School, “who has made a practice of avoiding controversial statements and winning admirers across the political divide.”

If conservatives can’t attack her positions, said Emily Bazelon and Dahlia Lithwick in Slate.com, they can always resort to personal attacks. Last week, CBSnews.com posted a piece by conservative blogger Ben Domenech asserting that Kagan was “openly gay.” CBS retracted the story, said Greg Marx in Columbia Journalism Review Online, after the White House angrily said it had published “false charges.” Rather than asserting that sexuality is a private matter, the administration insisted that the unmarried Kagan is straight, and acted as if “being gay is a serious offense.”

The biggest obstacle to Kagan’s nomination may not be this sideshow, said Peter Baker in The New York Times. It may be her relationship with Roberts. Obama and Roberts, both cerebral Harvard Law graduates, are now the leading “intellectual gladiators in the great struggle over the role of government in American society.” Major parts of Obama’s agenda, from health care to regulation of carbon emissions, could end up before the high court. So far, Roberts has been very “testy” when Kagan appears before the court to argue the administration’s positions, said Adam Liptak, also in the Times. “Absolutely startling,” he called one of Kagan’s recent arguments. On another occasion, when she asked a question, he sharply replied, “Usually, we have the questions the other way.” Is it just intellectual “sport”—or has Roberts already taken a dislike to Kagan? In making this critical pick, it’s a question the Obama administration will have to consider.

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